New York State Court of Claims

New York State Court of Claims

SZABO v. THE STATE OF NEW YORK, #2006-031-065, , Motion No. M-71213


Synopsis


Claimant’s application for permission to treat his notice of intention as a claim pursuant to CCA § 10(8)(a) is granted. Claimant has demonstrated that his application is timely, his notice of intention adequately sets forth a claim, and that granting his application would not prejudice Defendant

Case Information

UID:
2006-031-065
Claimant(s):
WILLIAM A. SZABO
Claimant short name:
SZABO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-71213
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
TRONOLONE & SURGALLA, P.C.BY: CARL TRONOLONE, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 26, 2006
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 through 6, were read on motion by Claimant for permission to treat his notice of intention as a claim:
1. Notice of Motion, filed January 23, 2006;
2. Affidavit of Carl Tronolone, Esq., sworn to January 17, 2006, with attached exhibits;
3. Affirmation of Thomas G. Ramsay, Esq., dated April 12, 2006, with attached exhibits;
4. Reply Affidavit of William A. Szabo, sworn to June 19, 2006, with attached exhibit;
  1. Reply Affidavit of Daniel G. Tronolone, Esq., sworn to June 20, 2006, with attached exhibits;
6. Affidavit of Susan Barber, sworn to June 22, 2006, with attached exhibits. BACKGROUND

On October 9, 2003, Claimant William A. Szabo, through his attorneys, served a notice of intention to file a claim upon the office of the Attorney General. According to that document, Claimant indicated his intent to sue Defendant for medical malpractice and negligence. The notice of intention indicated that Claimant, an inmate in the care and custody of the Department of Correctional Services (“DOCS”), had suffered two strokes prior to being incarcerated, and suffered from hypertension and a disease known as antiphospholipid antibody syndrome. At the time of his incarceration, Claimant asserts that he was taking, among other things, the prescription drug coumadin, a blood thinner, to help prevent the occurrence of subsequent strokes. According to the notice of intention, despite being aware of Claimant’s medical history, and despite objections from the Claimant himself, medical care providers for DOCS reduced the daily dosage of Claimant’s coumadin from 5 milligrams a day to 2 milligrams a day.

Subsequently, on August 16, 2003, at Livingston Correctional Facility, Claimant suffered a third stroke. Claimant asserts that the occurrence of the third stroke was the direct result of Defendant’s improper reduction of his prescription medication. The notice of intention was timely served upon Defendant. However, Claimant failed to serve and file his claim within two years of accrual as required by CCA § 10(3).

With this motion, Claimant requests permission to treat his notice of intention as a claim. As mentioned above, the notice of intention was served on October 9, 2003. Claimant correctly points out that, in certain circumstances, Court of Claims Act § 10(8)(a) authorizes the Court to permit the notice of intention to be treated as a claim. That section provides:
“A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.”
The first issue to address, therefore, is whether or not Claimant’s motion is timely. I find that it is. Although the parties disagreed as to whether the doctrine of continuous treatment tolled the statute of limitations for purposes of commencing an action, it is not necessary to resolve that issue in determining the timeliness of Claimant’s application. As Claimant’s motion was filed less than two and one half years from August 16, 2003, the date of Claimant’s stroke, his application is timely without considering the continuous treatment doctrine.

With regard to the service and contents of the notice of intention, both parties agree that the notice of intention was timely served. Whether the notice was adequate, however, was hotly contested. According to Defendant, the notice of intention cannot be treated as a claim for a number of reasons: 1) Failure to adequately state the place where and time when the cause of action accrued; 2) Failure to identify what acts or omissions occurred and how this deviated from accepted medical practices, proximately causing Claimant’s injuries; 3) Failure to include a “certificate of merit”; 4) Failure to include “the total sum claimed”; 5) Failure to properly verify the notice of intention. I will address these issues one at a time.

First, with regard to Defendant’s contention that the notice of intention fails to adequately set forth the time and place of accrual, I find that this argument is without merit. Although, as Claimant conceded in oral argument, the notice of intention is not a perfect document, perfection is not the standard. The question is whether the notice of intention gives sufficient information to permit a reasonable investigation into the allegations. I find that it does. The notice of intention certainly indicates that Claimant suffered a stroke due to Defendant’s medical negligence or malpractice on August 16, 2003 at Livingston Correctional Facility, and that Claimant was denied proper medical treatment for more than one week after suffering the stroke. The notice of intention also indicates that, from the time Defendant took custody of Claimant in June of 2002 until the date of the stroke, Defendant had failed to provide Claimant with the proper levels of medication. I find that the information contained in the notice of intention.

sufficiently sets forth the conduct that led to the stroke and where and when the stroke occurred. Accordingly, I find that the notice of intention sets forth sufficient factual support to apprise Defendant of the claim and enable a reasonable investigation into the allegations.

With regard to Defendant’s argument that the notice of intention cannot be treated as a claim as it was not accompanied by a “certificate of merit,” I note that Claimant has submitted a certificate of merit as exhibit D to the Reply Affidavit of Daniel G. Tronolone. I find that this adequately satisfies the requirements of CPLR 3012-a (see e.g. Dye v Leve, 181 AD2d 89 [lower court improperly treated failure to attach certificate of merit as a pleading defect]; Justus v State of New York, Ct Cl, June 15, 2004 [Claim No. 108499, Motion No. M-67787], Midey, J., UID #2004-009-35 [Claimant’s filing of certificate of merit in response to Defendant’s motion to dismiss rendered argument moot]).

With regard to Claimant’s failure to set forth the total sum claimed in the notice of intention, I note that, as both parties are aware, the Appellate Division, Fourth Department, has recently reversed the primary case on which this argument is based. In Kolnacki v State of New York (10 Misc 3d 781), the Court dismissed a claim due to Claimant’s failure to set forth the total sum claimed as required by CCA § 11(b). However, on April 28, 2006, the Appellate Division, Fourth Department, reversed this decision, finding that the failure to set forth the total sum claimed did not render the claim jurisdictionally defective when it had otherwise substantially complied with the statute. Accordingly, I find that Claimant’s failure to set forth the total sum claimed does not prohibit granting his application for permission to treat the notice of intention as a claim.

Finally, I will address Defendant’s contention that the verification of the notice of intention was defective. In Lepkowski v State of New York (1 NY3d 201), the Court of Appeals clearly overruled the line of cases which would support denial of Claimant’s application on this basis. In Lepkowski, the Court of Appeals stated: “there is no basis for treating an unverified or defectively verified claim or notice of intention any differently than an unverified or defectively verified complaint is treated under the CPLR in Supreme Court” (Lepkowski v State of New York, 1 NY3d 201, 210). Pursuant to Lepkowski, CPLR 3022 required Defendant to reject the notice of intention to file a claim and notify Claimant that it is treating the document as a nullity due to the defective verification. There is no indication in the papers before me that Defendant provided Claimant with such notification. For this reason, Defendant has waived any objection to the defective verification of the notice of intention.

Accordingly, based on the determinations set forth above, it is hereby

ORDERED, that Claimant’s motion for permission to treat his notice of intention as a claim is granted. Claimant is directed to file his notice of intention along with the statutory filing fee with the Clerk of the Court within 30 days of service of a filed stamped copy of this Decision and Order, and to contemporaneously advise Defendant of such filing. The Clerk shall treat the notice of intention as a claim and assign a claim number to it upon receipt of the appropriate filing fee. Within 40 days of the filing of the notice of intention by the Clerk of the Court, Claimant shall file and serve an amended claim which complies with the requirements of Section 11 of the Court of Claims Act, including stating an amount claimed. And it is further,

ORDERED, that Defendant shall file and serve its answer within 40 days of service of the amended claim, or within 40 days of the date upon which the amended claim should have been served and filed as set forth above.

The Clerk of the Court is directed to serve this order upon the parties.

September 26, 2006
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims